Sunday, July 29, 2007

Identity theft case fails due to coerced confession

You may have seen the story that came out a few days ago about how a man who stole the identity of Todd Davis, CEO of the LifeLock company and used the information to get a $500 loan.

The man, who has never been identified, had obtained Davis’ name and Social Security number . . . which is probably not surprising since Davis apparently posts his SSN on the LifeLock website. Davis seems to have hired a private investigator to track down the identity thief, which the investigator did. After keying in on a suspect, the investigator apparently told police who the suspect was and that he was in Forth Worth, Texas.

While the police were waiting for subpoenaed records from AT&T to confirm that the IP address used in the theft was linked to the person the private investigator had identified, the investigator went ahead and interrogated the suspect in Forth Worth. Indeed, the investigator not only interrogated the suspect and got him to confess to using Davis’ name and SSN to obtain the loan, he had a film crew tape the whole thing. . . even though police seem to have suggested this was not a good idea.

You probably think that ended the matter, because a videotaped confession is pretty devastating evidence in any case, even a $500 falsified loan case. Actually, it did not. The suspect was not, and will not be prosecuted for what he did because the police concluded he was coerced into confessing.

From the little information I can locate, it seems the man was mentally disabled. And according to a news story, a senior police officer who was involved in the case, Fort Worth Sergeant J.D. Moore, said the confession was coerced:

`They went to his house with a camera crew and they yelled at him and browbeat him into signing a confession that they had already typed out,’ Moore said.

The man told police he was informed that if he did not sign the confession and agree to do community service, police would be coming to arrest him.

`That makes them judge, jury and executioner,’ Moore said.

After discussing the confession with the Tarrant County prosecutor, police closed the case and have no plans to arrest or otherwise pursue the suspect. They do seem to have worked out a voluntary arrangement by which he will provide community service, which seems to have been the penalty he would have gotten had he been prosecuted and convicted.

Personally, I have no problems with how the Fort Worth police and prosecutor’s office handled the case. It seems a fair outcome, both in terms of saving everyone’s time (if the penalty wound up being the same) and in terms, perhaps, of factoring in the man’s mental disability.

What I don’t understand, though, is why they decided they couldn’t use the confession. And let me explain why, briefly.

There are two standards that govern the admissibility of a confession as a matter of constitutional law. We all know the first one – the Miranda rights. There’s no indication the private investigator gave the suspect Miranda rights, but he didn’t have to. Miranda rights only come into existence (or “vest” in a specific person) when someone is taken into custody (formal arrest or other kind of detention) by police. Miranda protects you from the police, not from your employer, not from private investigators, not from your neighbors, etc. The Supreme Court has on many occasions made it very clear that the Miranda rights are intended to address a very specific “evil:” custodial interrogation by police officers (and you must know they are police officers – doesn’t apply if you do not because, say, they are undercover).

So Miranda does not apply. But you usually don’t refer to a failure to give Miranda warnings when they’re required as resulting in a “coerced” confession. Instead, you say there was a “Miranda violation.” That leads me to believe the Fort Worth authorities had the other standard in mind.

Back in 1936, the Supreme Court decided a case called Brown v. Mississippi, in which several defendants challenged their conviction for murder. The conviction was based on their confessions. They confessed because they were whipped and told they would be whipped until they confessed to the murder. At trial, the officers who whipped the men admitted it, but the court let the confessions in and they were convicted.

The Supreme Court said, in essence, “you can’t do that because it is inconsistent with our constitutional principles of justice and fair play.” The umbrella term for those principles is due process – the government can prosecute and convict you, but to do so it has to follow certain procedures (certain “process”) that adequately guarantee your rights to a fair trial. So the Brown Court said any use of torture to extract a confession violated due process and the confession cannot be used in court.

Over the last roughly 70 years, courts have expended the Brown standard so that it now encompasses egregious psychological coercion as well as physical torture. Police can lie to suspects and trick them, but they cannot go too in doing either or in, essentially, browbeating a suspect. They can’t threaten a suspect with torture or with capital punishment only to get a confession, nor can they promise to let him go if he’ll just tell them what happened (having no intention of letting him go).

I’m assuming, then, that the confession in this case qualified as coerced because the private investigator engaged in what a court would find to be egregious psychological coercion. What I don’t understand is why it matters. In Colorado v. Connelly, 479 U.S. 157 (1986) the U.S. Supreme Court held that the due process standard only applies to police coercion. Specifically, the court said that “coercive police activity is a necessary predicate to finding that a confession is not voluntary within the meaning of the due process clause, and even the most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible.”

So I don’t see why the private investigator’s coercing the suspect would make the confession inadmissible. The Connelly Court said that when a private party gets a confession, it can be admitted at court but the defendant can challenge it as not having been voluntarily given and not being reliable (because it was coerced).

The other thing that often happens when a private party gets a confession but there’s a Miranda problem (the rights weren’t given and the court decides the private party was acting as an agent of the police, so they should have been) or a due process problem is that police re-interrogate the suspect . . . giving Miranda rights at the beginning and not engaging in egregious coercion. Courts consistently hold that a subsequent confession can be admissible if the police conduct in effect “cures” the prior problem (assuming there was one, which I’m not sure there was in this case.)

This may not seem like a cybercrime issue, but I think it is. One thing we’re seeing with cybercrime is the increased involvement of private citizens in the investigative process (think “To Catch a Predator”). This also comes up when a business has been the victim of a cybercrime they think has been committed by an insider and they launch their own investigation . . . complete with interrogating employees.

I’ve wondered for some time if we need, perhaps, to re-think certain of the limitations the Supreme Court has put on the interrogation standards so that it would be difficult for, say, a private employer to coerce a confession from an employee, give the confession to the police and let them take it from there. As I said, in that instance the employee’s only option might be to argue, at trial, that the confession was unreliable. And maybe that’s okay . . . ?

2 comments:

Sgt. J. D. Moore
said...

Professor Brenner,

The news article you used to argue the points of this case doesn't really tell the whole story. Your conclusion is speculative and not entirely accurate.Todd Davis' wife, cameraman, and private investigator were not acting as agents of the police therefore Miranda (or the lack of Miranda warnings) would not and did not come into play in the decision not to prosecute the actor in this offense. I never referred to a "failure to give Miranda Warnings" when I spoke of the coerced statement that the suspect was forced to give. The fact that they had the suspect sign a prepared confession (complete with sentencing him to community service), after threatening that he would be arrested if he didn't, was the main reason for not prosecuting the case. The suspect was still in fear of being arrested when I interviewed him. I didn't believe (nor did the prosecutor) that we could salvage a prosecutable case after they coerced a prepared confession from the suspect, especially in light of the fact that he is mentally handicapped. The case was tainted beyond repair because the Davis' insisted on instant results. Their sentence of community service was unenforcible and was not carried out (although the suspect told me he would voluntarily serve community service because he thought he was going to go to prison). Only a court can pass sentence. Considering the totality of the circumstances surrounding his confession, and the fact that the suspect was apparently handicapped enough to make him incapable of understanding that any subsequent confession to the police would have to be voluntary and separate from the confession to Ms. Todd and her investigator; it seemed that the right thing to do, in this case, under the circumstances was to not pursue a criminal case. I also didn't believe him to be capable of making a sound decision as to when he should request the right to counsel if we were to have questioned him after his forced confession to Ms. Davis and the private investigator.

They already have a Information Security program, they have been and are ISO 27001 certified (less than 100 other US companies have this level of security) and maintain a PCI level one compliance, not sure what the FTC is talking about affiliate programs.